SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  This is an appeal in which it is sought to upset the trial judge's conclusion that the appellant had failed to establish, against his former employer, a case in negligence.  The appellant sought to establish that exposure to isocyanates in the course of his employment caused a serious asthmatic condition which rendered him unemployable.  The writ was issued in May 1990 and the statement of claim delivered in February 1992;  it alleged that the appellant was exposed to and inhaled numerous chemicals, including isocyanates.  The allegation was that such exposure caused asthma.  The defence raised among other things the issue of the limitation statute.  An amended statement of claim delivered in 1997 limited the case to exposure to isocyanates.  A further amended defence, delivered in 1998, dropped the plea of the limitation statute.

2. The learned primary judge included in his reasons an elaborate discussion of the evidence. The appellant's case on appeal was in substance that the judge made a number of manifest errors in this analysis and that his Honour's conclusions were in some respects contrary to the weight of evidence.

3. The appellant was employed at Brisbane as a surface coating inspector for the respondent from 1982 to 1989. His Honour explained in his reasons that the appellant's case was that from July 1987 to November 1989, at places named by the judge, the appellant's work exposed him to isocyanates. As to one of the allegations made, that the appellant was exposed to isocyanates during work at the premises of IMP Blast Cleaning, the judge found that during the appellant's attendance at those premises there was no spraying of polyurethane paint (which contained isocyanates), the paint having been applied by brush or roller. His Honour found that the appellant's inspections of painted items were carried out in a large building. As to the next premises in issue, those of G & J Dowrie Cranes, the judge found that the inspected items to which polyurethane paint was applied were in a "semi‑open" area and so it was "extremely unlikely" that the appellant was exposed to polyurethane fumes or vapour there.

4. His Honour made, to put it simply, other observations in support of the view which was reached (994) that it was possible but unlikely that the appellant was exposed to airborne isocyanates during the inspections at the IMP and Dowrie premises. His Honour was satisfied that the risk of inhalation of polyurethane fumes at these places was "so low as to be negligible".

5. As to the third inspection place relied upon by the appellant, referred to as the Beltreco premises, the appellant's case was that he inhaled isocyanates emitted by a hardening solution. The judge held (999) that the appellant visited the Beltreco premises less frequently than was alleged and that his exposure to isocyanates in those premises was "highly unlikely", the isocyanate vapour levels being "negligible" (999). The judge then proceeded to discuss the evidence of the expert medical witnesses. They included Drs Maurice Heiner, Robert Edwards and Iven Young, the first two being described as thoracic physicians and the last as a respiratory physician. The conclusion of Dr Young, which was that it was not demonstrated that exposure to isocyanates brought about the appellant's condition, was accepted in preference to the contrary views of the other two doctors. The learned primary judge gave detailed explanations of his reasons for his preference, including some criticism of the extent to which Dr Heiner displayed objectivity in his approach to the case.

6. The judge's acceptance of Dr Young was fatal to the appellant's case and, on the face of it, it would seem to be difficult to challenge the judge's conclusion, which depended at least in part on considerations of the impression the witnesses made on the judge. Looking at the case more broadly, it is in my view one in which it would be impossible for this Court to reverse the judge's findings, since there was much evidence capable of supporting the judgment attacked. The only substantial question is whether it is right, as the appellant's counsel asserts, that the judge made significant errors in his analysis of the facts before him, to such an extent as to require that the matter be retried.

Dr Young

7. Acceptance of the evidence given by Dr Young (rather than Drs Heiner and Edwards) resulted in the defeat of the appellant's claim. Dr Young's first connection with the case derived from a request by the respondent's solicitor to write an opinion, based on documents provided to him with a letter of September 1998. There is no reason to think that the documents the solicitor supplied were incomplete in any relevant respect. Dr Young's opinion at that stage was that there was evidence of exposure to isocyanates until September 1989 but not beyond that date. The doctor dated the period of serious and chronic worsening of the appellant's asthma as having occurred about April 1990; that was some months after he left the respondent's employment. The doctor referred to evidence placed before him that the appellant was exposed to isocyanate fumes from August 1987 to September 1989 and expressed the view that it was important to find out whether there was any exposure from December 1989 (when the appellant's employment with the respondent ceased) to April 1990. This was based on the opinion that the evidence showed little sign of absence of work due to respiratory problems from August 1987 to September 1989. The doctor remarked:

"I would regard this history of apparently little asthma deterioration during a two year exposure to isocyanates as somewhat unusual, if this exposure has caused deterioration in this man's asthma ... There is no doubt that asthma can continue following removal from [isocyanate] exposure, as appears to have happened with [the appellant].  However, most such patients will complain of some symptoms at the time of exposure over such a long period, even though these symptoms may not be acutely severe ... I would also expect that his clear deterioration in 1990 would have been associated with isocyanate exposure at the time.  There is no doubt that asthma symptoms can develop gradually with repeated isocyanate exposure, however, I would have expected more documented symptoms and airway obstruction, at least toward the end of the two year period of exposure that has been documented".

In short, the doctor's opinion at this stage was equivocal;  he preferred to defer reaching a final opinion until he received the further information he requested, but was inclined to be sceptical about the connection between isocyanate exposure and the ultimate condition. 

8. The report just discussed, given in December 1998, produced a response which consisted of a statement made by a Mr J P Haig, setting out his view of the appellant's chemical exposures, and a chronology prepared by the respondent. That is, it appears that the only new information Dr Young got was Mr Haig's statement, since one might safely assume that the chronology did no more than set out in a more useful order the history contained in documents earlier sent to Dr Young. Mr Haig gave evidence at the trial;  his opinion as to the likely extent of exposure to isocyanates, which was accepted by the trial judge, formed the basis on which Dr Young based the transformation of his earlier scepticism about the causal link which the appellant relied on to an opinion that:

"On the balance of probabilities, from the evidence provided, I believe that it is unlikely that occupational exposures have played a clinically significant role in the chronic deterioration of his asthma".

It should be added that Mr Haig's view of the extent of exposure (which was plainly inconsistent with that put forward by the appellant) seems to have been accepted by Dr Young without question;  this is perhaps odd, in the sense that it must have been difficult for Dr Young to determine whether the account given by Mr Haig or that of the appellant was correct.  One reason was that at that stage Dr Young had seen neither the appellant nor Mr Haig, and another that Mr Haig's opinion was based on, among other things, the study of statements and interviews with people;  in effect, Mr Haig's task was to express an opinion on a point which lay at the very heart of the dispute before the primary judge:  the extent of the appellant's exposure, during the relevant period, to isocyanates.  I comment further, below, on Dr Young's evidence.

Mr Haig's Report

9. Mr Haig's report (751) concluded that –

"Establishment of the airborne isocyanate concentration at or above which one might be at risk of contracting occupational asthma is very difficult". 

This was I think an assertion not within his field of expertise.  Mr Haig thought that exposure to isocyanate during the appellant's inspections at Beltreco was "highly unlikely".  His opinion was less favourable to the respondent with respect to exposure at the other sites.  He thought exposure to airborne isocyanate was "possible but of low probability", but "no definitive assessment is possible" as to other exposure to isocyanate.

10. Although the course followed with respect to Mr Haig was unusual, in that his evidence included conclusions on points which were really for the trial judge rather than for experts, that aspect of the matter is not the subject of complaint. But the appellant's counsel has argued that the judge's treatment of the Haig evidence was erroneous. It appears that his Honour might have been under a misapprehension as to the field of Mr Haig's expertise. He described him at one point as the "senior medical scientist" of the respondent. Mr Haig made no such claim. He told counsel for the appellant that he had no qualifications in the field of medicine, nor did he put himself forward as a person with expertise in the medical field (603). Apart from trade certificates, his qualifications were in applied chemistry and environmental studies. His practical experience was initially as an assistant in a chemical laboratory and then, over many years, as an analytical chemist. From late 1988 to the time of his report (February 1999) he occupied the position of "senior materials scientist". The reason why his opinion was sought appears to have been that, in addition to the duties I have mentioned, he functioned as an unqualified "occupational hygienist", in the absence of any professional person employed to fulfil that function.

11. The judge (1000) thought it to be highly probable that the symptoms suffered by the appellant after going to Beltreco "were caused by trichloroethylene and not by the isocyanates in the hardener". According to the respondent's submissions (para 43) there was medical evidence to support that, but none is identified, nor have I found any. The learned primary judge perhaps relied upon Mr Haig's evidence for this conclusion; if his Honour did so it was in my respectful opinion an error. None of the four expert medical witnesses called said so – nor, if it matters, did Mr Haig. The critical part of the learned judge's treatment of Mr Haig's evidence was, I think, the following passage –

"I accept Mr Haig's opinion that in respect of plaintiff's visits to IMP premises and G&J Dowrie's premises no effective assessment of plaintiff's exposure to airborne isocyanate during inspections of coatings is possible because conditions and activities at each inspection visit in 1987 are unknown.

I accept Mr Haig's further opinions and the reasons he gives for them that:

1.  plaintiff's exposure to airborne isocyanates during those inspections of coatings is possible but of low probability;

2.  that this aspect of the plaintiff's duties was that most subject to ad hoc conditions;

3.  that the potential for exposure to high levels of isocyanate mist, dust and vapour did exist, however normal inspection practices and active avoidance of spray drift would tend to eliminate or minimise exposure.

I find the risk of plaintiff having inhaled fumes from polyurethane paint at the IMP site and at the G&J Dowrie Cranes site was very low indeed and so low as to be negligible". 

The task which Mr Haig set himself in writing his opinion was to examine, and no doubt assess the credibility of, evidence from various sources to reach a conclusion as to whether there was significant exposure of the appellant to isocyanates at relevant times.  In his report's conclusions Mr Haig fairly emphasises (para 1) two difficulties he faced:  one, that contaminants such as isocyanates could cause "significant health effects in susceptible individuals at levels far below [the official standards];  second, that "the actual exposure of the plaintiff to airborne isocyanate is impossible to prove".

12. No doubt an obstacle (emphasised by Mr Curran for the appellant) which Mr Haig encountered is that his investigation was done a very long time after the events in question; another was that, as the evidence in this case illustrates, the information available bearing upon the likelihood of exposure to isocyanates was in some degree uncertain and conflicting. It is not easy to reconcile the views expressed by Mr Haig, that the exposure of the plaintiff to airborne isocyanates was "impossible to prove", and that no definite assessment of the plaintiff's exposure to airborne isocyanate is possible (751) with the conclusion, which the judge reached (995) on his evidence, that:

"... the risk of plaintiff having inhaled fumes from polyurethane paint at the IMP site and at the G&J Dowrie Cranes site was very low indeed and so low as to be negligible". 

The assessment Mr Haig thought was impossible to make was in fact made, on the basis of his evidence.

13. Another aspect of the treatment of Mr Haig's evidence, related to his absence of medical qualifications (which he stressed), was that it was clear from the evidence that a very low concentration of isocyanates can adversely affect susceptible individuals. As little as one part in a billion can make a difference: (318/34). When asked about this subject, with reference to what was described as a "sensitised worker", Mr Haig refrained from commenting on the likely hazard, on the ground of his lack of expertise in medical matters (629).

14. One other matter on which Mr Curran placed emphasis was that he said the judge might have misunderstood some evidence about the mode of application of paint – whether by spraying or otherwise (992, 994); this appears to be correct but is not in my opinion a matter of decisive significance.

15. To return to Dr Young's reliance on Mr Haig's report, a subject mentioned above, the doctor's first point was to resile from certain observations in his first report, apparently on the basis of what Mr Haig "convincingly documents". Although, as was pointed out by Mr Griffin for the respondent, Dr Young relied in substantial part upon spirometry readings, rather than Mr Haig's report, in reaching his final conclusion, it appears to me that nothing in his oral evidence detracts from the proposition that the only new information he had between the two reports made was Mr Haig's opinion. Without reiterating the discussion above supporting that view, it does not appear that Mr Haig was able to say definitely what was the "actual exposure of the plaintiff to airborne isocyanate", to use his expression.

16. In summary, there is substance in the view that his Honour took too much against the appellant's case from Mr Haig's opinion.

Limitation Statute

17. Mr Curran contended that the judge's view was that, to some extent, the appellant fabricated a case based on the allegation of exposure to isocyanates for the purpose of avoiding the operation of a statute of limitations. The relevant dates have been mentioned above, but I will again set them out. The critical period, so far as the appellant's case was concerned, was one of about two years from August 1987, during which he allegedly was exposed to isocyanate fumes. A writ was issued on 22 May 1990;  the first statement of claim alleging exposure to numerous chemicals was delivered in February 1992 and the amended pleading focusing on isocyanates was delivered in August 1997.  The judge held in effect that the appellant's consciousness of the effect of the statute limiting the time for suit affected his actions;  his Honour said that it was from about mid-1987 that the appellant became conscious of the limitation statutes (984).

18. The appellant's counsel was particularly critical of the judge's reliance on Exhibit 5:

"The plaintiff's graph at Exhibit 5, part A p 30 has helped confirm my belief that the plaintiff has been at pains to avoid the impact on his case of the limitation period and has been at pains to attribute his present condition to isocyanate exposure said to have occurred since 22 May 1987.  This aspect of the case has also caused me to have serious concern about plaintiff's credibility". 

The appellant's point is that it seems plain that the graph was prepared well after 1987, and probably well into the 1990's.  That view of the matter is plainly correct, but it does not follow that the judge was not entitled to take the existence of the graph into account.  His Honour did not say when he thought it was prepared.

19. But this aspect of the judgment is, with respect, puzzling. The appellant says he became aware of the operation of the statute of limitations in 1990 when he went to see his solicitor and there is no reason to question the accuracy of that statement. If he were a person of any intelligence, it would then have been evident to him that unless he could show some injurious exposure within three years prior to the writ, he must fail. It would be natural enough that he would be concerned about the possibility of failing on that score and the existence of the graph, Exhibit 5, appears to me to be completely neutral; that the appellant knew he might have a problem because of the operation of the statute and reflected on that problem goes no distance to show that his evidence was suspect. If he had asserted that he never gave the statute a thought, after its effect was explained to him in 1990, there might have been reason to hold that against his credit.

20. Special mention of the hazardous potential of isocyanates was made by the treating physician, Dr Heiner in 1988 (B9) and on the evidence the appellant did not find out about his exposure to isocyanates until 1989 (B17, B20). In June 1990 the doctor again emphasised the importance of isocyanates (B14) but the statement of claim subsequently delivered did not confine the case to those substances. Although Dr Heiner advised in 1994 that isocyanates appeared to be the problem (B16), it was not until 1997 that it was decided to follow Dr Heiner's opinion in that respect.  This sequence of events does not appear to me to raise any ground for suspicion of the appellant's credit, unless it be that any plaintiff who understands the issues in the case and therefore knows what it is in his interests to say is for that reason a suspect witness.

21. In summary, it is my opinion that the appellant's criticism of the judge's emphasis upon the appellant's knowledge of the operation of the limitation statute has substance.

Severe Asthma

22. It was the judge's view, criticised by Mr Curran, that before exposure to isocyanates the appellant's asthma was severe (1016). The use of that word, as the respondent's counsel points out, is supported by evidence Dr Young gave, which evidence did not, with respect, appear to have any great bearing upon resolution of the issues. It was common ground before the alleged exposure to isocyanates the appellant had asthma and that after the period of the alleged exposure he became, over a period of time, very much worse. There is no reason to think that the judge misunderstood the evidence about this aspect of the case. His Honour referred (1007) to evidence that the appellant's asthma was "initially relatively mild".

New Trial?

23. Mr Curran has in my opinion made some criticisms of the learned primary judge's reasonings which have validity. I have not dealt with those arguments Mr Curran put forward which do not appear to me to have real weight. His Honour wrote an elaborate judgment about a fairly complicated case and that the reasoning is in some ways flawed, as I respectfully think it is, does not necessarily vitiate the result.

24. It was argued for the respondent by Mr Griffin that there were three principal issues: first, the extent of exposure to isocyanates, secondly, whether there were acute flare-ups of asthma at the time of alleged exposure to isocyanates, and, thirdly, the spirometry readings. It follows from what I have said above that the respondent has difficulties as to the judge's reasons on the first issue, which were based principally upon the evidence of Mr Haig. But none of the appellant's more substantial criticisms of the judge's reasoning touch the second and third issues.

25. The appellant's evidence was to the effect that he had adverse reactions to substances which, as was common ground, contained isocyanates, during the course of his work in the relevant period and in that he had support from other witnesses. Dr G O Solley, an allergist, dealt with this evidence, his view being that people who are hypersensitive to isocyanates typically have an acute flare-up directly on exposure to the isocyanates, epoxy resins and so on (896). In discussion of this point in his oral evidence, the doctor added that his experience –

"... with patients with reactions to isocyanate that it's something that's very obvious and they know that those particular fumes will cause acute asthmatic responses, and ... he did not entertain that kind of history". (549) 

The doctor also pointed out that, as was the fact, a chemical test for the presence of antibodies to isocyanates was negative.  Dr Young agreed with this (303) but thought the reaction might occur a few hours later.  In this connection, it has to be noted that, as Dr Young pointed out, there was only one occasion during the relevant period when the appellant took days off for reasons which could be associated with asthma caused by isocyanates.  That the judge's reasons accepted Dr Solley on this point (1027, 1028) is not a point, in my opinion, to which the criticisms of the judge's reasons which I have accepted have any special relationship.  That is, there was evidence that the history given by the appellant was hard to reconcile with the theory that the lamentable condition of his lungs was caused by reactions to isocyanates, substances to which he was alleged to be sensitised.

26. The third point taken by Mr Griffin appears to me to be in the same category. Dr Young was of opinion that the spirometry readings, the correctness of which was common ground, could hardly be reconciled with the appellant's case.  Dr R L Edwards, who was not subjected to any criticisms as to objectivity, reviewed the spirometry readings and reached a conclusion favourable to the appellant (B45).  Dr Young (312) thought the critical point in the graph was not reached until late in 1991.  The doctor thought that consideration against isocyanates being the cause of the ultimate condition was that the appellant's major deterioration occurred about two years after his last exposure;  that is not a view which the experts called for the appellant accept.  Again, it does not appear to me that this conflict has anything to do with the complaints which the appellant has made about the judge's reasons.  The judge accepted Dr Young's opinion about the relevance of the spirometry graph and it was open to his Honour to do so.

27. The hurdle which the appellant faces, then, is in the end that, according to expert evidence which the judge accepted, there were two considerations which told strongly against acceptance of the appellant's case. Neither of them – particularly the latter – had any real nexus with errors the judge is said to have made on other matters.

28. One can hardly study the case without harbouring the suspicion that the pitiable physical condition which the appellant has ultimately reached was connected with his exposure to harmful chemicals at work. But one thing which is clear from the evidence is that it is not necessarily easy to determine which of numerous possible causes has brought about a deterioration in an asthmatic's condition; there was, as it appears to me, inherent difficulty in showing that it was exposure to isocyanates, rather than any other cause, which operated here. The judge's acceptance of the opinions of Drs Young and Solley on the matters I have mentioned was sufficient to destroy the appellant's case.

29. I would dismiss the appeal with costs.

30. DAVIES JA:  I agree with the reasons for judgment of Helman J and with the orders he proposes.

31. HELMAN J:  On 8 June last year, after a trial, the appellant’s claim against the respondent, his former employer, was dismissed.  The claim was for damages for personal injuries allegedly suffered while he was working as a surface coating inspector.  He alleged negligence and breach of his contract of employment by the respondent.  His case was that he had been exposed to toxic isocyanate compounds.  He alleged that, as a result of that exposure, asthma, from which he had suffered before the alleged negligence and breach of contract, had been severely aggravated - so much so that he has been left with irreversible lung disease involving permanent airway obstruction. 

32. The appellant was born on 9 July 1942. He was employed by the respondent from 1973 until December 1989 - in Brisbane as a surface coating inspector from 1982. The main issue at the trial was one of causation: whether the appellant had established that his irreversible lung disease had been caused by exposure to isocyanates. The learned trial judge was not satisfied that the appellant had established the necessary causal link.

33. His Honour’s main findings concerning causation relevant to what follows may be summarized briefly. The severe aggravation of the appellant’s asthma did not occur until August 1991. Any exposure to isocyanates would have occurred no later than December 1989. Until about mid-1991 the appellant’s asthma was not irreversible. Because of the lapse of time between December 1989 and August 1991 his Honour was not satisfied that it was probable that exposure to isocyanates was the cause of the severe aggravation of the appellant’s condition.

34. In reaching that conclusion his Honour relied chiefly on the expert opinion to that effect of Dr Iven Young, consultant respiratory physician. Dr Young was one of a number of doctors who gave evidence. Other doctors were: Dr Trevor Myers, consultant physician; Dr Christopher Strakosch, consultant endocrinologist; Dr Robert Edwards, thoracic physician;  Dr Coralie Bishop, general practitioner;  Dr Maurice Heiner, respiratory and intensive care physician;  Dr Vagish Singh, cardiologist;  Dr Leslie Johnson, general practitioner;  and Dr Graham Solley, allergist. 

35. There are eighteen grounds of appeal in the notice of appeal, but it is convenient to deal first with the ninth, tenth and twelfth grounds:

  9. His Honour erred in accepting the findings and opinions of Dr Iven Young. 

10.  His Honour erred in making no allowance for the fact that Dr Young had never seen the Plaintiff.

 . . .

12.  His Honour erred in criticising Dr Heiner for alleged lack of objectivity.

36. Dr Young, in reaching his opinion on the cause of the appellant’s condition, gave considerable weight to a graph prepared by Dr Edwards, who had attached it to a report dated 27 July 1998. In the graph spirometer readings of forced expiratory volume in the first second (FEV1) from February 1990 to 1997 shown in hospital records were plotted. The graph showed a fall from just below three litres in February 1990 to below two litres in April 1990 followed by rises and falls until August 1991, after which there was a continuous decline from above two litres to below two litres towards one litre and below. The points plotted are consistent with the following readings (in litres) shown in the hospital records: 2.75 on 26 February 1990, 1.7 on 9 April 1990, 1.6 on 30 July 1990, 2.2 on 24 September 1990, 1.4 on 17 December 1990, 2.2  on 4 February 1991, 1.3  on 29 April 1991, 1.4  on 3 June 1991,  2.2  on 17 June 1991,  2.2  on 26 August 1991, and 1.35 on 22 October 1991. 

37. In the report I have referred to, Dr Edwards wrote that it would appear the appellant developed asthma in 1984 and possibly had symptoms consistent with asthma in 1980, although the diagnosis was not made until 1994. Between 1984 and 1986 the appellant’s lung capacity was ‘relatively normal’, and then between 1989 and the date of the report there had been a progressive deterioration in lung function. ‘His spirometry values’ Dr Edwards wrote, have fluctuated since 1990, but the trend as shown in the graph has been progressive deterioration and he is now left with a degree of severe airway obstruction’. Dr Edwards, when cross-examined about the graph, said that it showed ‘the major persistent downturn’ in the appellant’s condition had occurred ‘from August 1991 onwards’.  He agreed that it was then that the appellant’s condition became ‘unresponsive’.

38. Dr Young said that the graph showed variable levels of FEV1 indicating varying degrees of bronco-constriction in the appellant’s lungs until August 1991. ‘Thereafter’, Dr Young said, ‘the spirometric readings fall and do not recover’. Asked about the readings plotting a downturn from the beginning of 1990 through to an upturn between July and September 1990, Dr Young said he would interpret them ‘as showing that his asthma is variable but still capable of returning his airways to reasonable function . . .not normal but reasonable’. Dr Young’s opinion was that the aggravation of the appellant’s condition could not be attributed to exposure to isocyanates because such a long time had elapsed between when he could have been exposed to them while employed by the respondent and the onset of the deterioration of his condition. Dr Young said that his opinion would remain the same even if it had been shown that there was an adverse reaction to isocyanates before the appellant ceased work for the respondent - unless it could be shown that the appellant had, just before the deterioration in his condition, again been exposed to isocyanates. There was, as his Honour found, no evidence of any such exposure, or possible exposure, for some twenty-one months to two years before August 1991.

39. Dr Young clearly has substantial expertise in the field of respiratory medicine. He is head of the Department of Respiratory Medicine at the Royal Prince Alfred Hospital in Sydney, and a clinical associate professor of medicine at the University of Sydney. Although, as his Honour noted, the appellant had not consulted, or been examined by, Dr Young, he preferred Dr Young’s evidence on the central issue of causation to that of Dr Maurice Heiner who had treated the appellant for asthma from 1984.

40. Dr Heiner first saw the appellant on 30 July 1984. He saw the appellant in his private rooms, at the Queen Elizabeth II Jubilee Hospital, and at the Logan Hospital. The appellant was his patient continuously from 1984. Dr Heiner’s opinion was that exposure to isocyanates in 1987, 1988, and 1989 had led to the appellant’s suffering irreparable and permanent damage to his lungs in April 1990. Referring to the graph prepared by Dr Edwards, Dr Heiner maintained that the ‘persistent downturn’ in the appellant’s condition occurred in April 1990 because it was then that an FEV1 reading of less than two litres was recorded. Then, as Dr Heiner put it, the appellant’s condition ‘smoulders along for a period of time, waxing and waning’.  That showed that asthma is unstable and also, in the appellant’s case in Dr Heiner’s opinion, it was consistent with a marked increase in bronchial reactivity to such things as dust, pollens, high humidity, and changes in temperature following his becoming, or being, sensitized to isocyanates.

41. His Honour recorded that he thought that ‘on occasions Dr Heiner failed to display the objectivity which an expert witness is expected to bring when giving evidence to a court’. On that topic his Honour referred first to his assessment of Dr Heiner’s response to questions about a document which the appellant had prepared and given to Dr Heiner.  On it was a notation referring to the possible effect of the Limitation of Actions Act 1974 on the appellant’s claim.  His Honour referred to certain argumentative answers given by Dr Heiner when cross-examined about the document, and then proceeded to discuss contradictions between Dr Heiner’s oral evidence concerning when the appellant had told him that he had been exposed to isocyanates and references to that subject in reports Dr Heiner had supplied about the appellant.

42. In a report dated 9 November 1988 to a Mr Seggar of the Association of Architects, Engineers, Surveyors and Draftsmen Dr Heiner reported that the appellant had stated that ‘in his job he was often exposed to isocyanates and other volatile chemicals’. Dr Heiner summarized his assessment of the appellant’s condition and its history in the following paragraph:

In conclusion, this man is an asthmatic.  There is probable history of childhood asthma.  The disease was exacerbated almost certainly by a viral infection in 1984.  However, at this time he also moved to Brisbane and his occupation lead him to be exposed to various chemicals including isocyanates.  His disease has not stabilized.   He has had aggressive, conservative therapy and I think that there is strong circumstantial evidence that his disease is exacerbated by his ongoing chemical exposure.

But in a report dated 7 February 1994 to Carberry’s, solicitors, Dr Heiner recorded that in November 1989 the appellant ‘reported for the first time that he was exposed to isocyanates’.  In a report dated 1 September 1994 to Carberry’s Dr Heiner gave the date of his being told about the appellant’s exposure to isocyanates as 20 November 1989.  He explained the reference to that subject in the report of 9 November 1988 by saying ‘I can only assume that when I stated he had been exposed to various chemicals including Isocyanates, that this was my assumption’. 

43. When asked in cross-examination whether it was his current recollection ‘that the appellant never ever mentioned isocyanates before November ’89’, Dr Heiner replied ‘That is my recollection. I would have asked him the question, but that is my recollection’.

44. There were further discrepancies between accounts given by Dr Heiner as to when he had first asked the appellant about isocyanates. In the report of 1 September 1994 he said he assumed he had done so in a telephone conversation in December 1987. In a report dated 6 January 1997 to the appellant’s present solicitors Dr Heiner said that on 7 February 1987 he initially questioned the appellant about occupational exposure and he asked the appellant what chemicals might be present at the factories the appellant visited.  Dr Heiner said that no ‘definite notation’ existed about isocyanate, adding:

He states that I did not mention this chemical at that time.  It is my practice to routinely ask about this chemical and I also note that there is no notation in the chart and after consultation with Roy on numerous occasions about this, he is adamant that I did not ask about this chemical.

In April of 1987 he provided a list of chemicals to which he was exposed.  Isocyanate did not appear on that list.  On reviewing the notes and the chronology, it was possible that I made a mistake in one of my initial reports and the report should have read ‘November ’87’ rather than ‘December 87’.  Isocyanate was not mentioned in the notes, but rather assumed by me that I may have mentioned this chemical as part of my general discussion.  At that time Roy was not being further exposed to the polyurethane hardener and consequently no further exploration of this fact was made.

In late 1987 I was aware that the hardener in the polyurethane would have contained a small amount of isocyanate and that may have been discussed.  Roy had no knowledge that he had ongoing exposure to isocyanate in carrying out his daily tasks at the Beltreco Rubber LiningWorks.

. . .

In November of 1987 I mentioned the word:  ‘isocyanate’ to Roy.  Roy then was able to ascertain that there had been some isocyanate in the polyurethane paint that had been used at QEC.  He later reported that after investigations, he was able to state that he had been exposed to the isocyanate containing paint from August until November 1987.  Without his knowledge he was also being exposed to isocyanate which was present in some type of chemical agent which was involved in the “chemical curing of rubber”.  This was present in the Beltreco Factory at Archerfield.  Roy visited this factory for approximately 2 hours per day from November 1987 until July 1988, then occasionally visits until August or September of 1989.  He reported that the factory could not be ventilated because this affected the hardening of the rubber to metal surfaces.  Hence, the bulk of his isocyanate exposure occurred during this time.  Since the very earliest date of exposure to isocyanate was in August 1987, I think that he had ongoing exposure from August 1987 until September of 1989.  The initial exposure was in small amounts when he was exposed to the polyurethane paint containing isocyanate, but it was the ongoing exposure from November 1987 until August or September 1989 at the Beltreco Factory that the unknown and more serious exposure occurred.

45. The appellant gave evidence that in November 1987 he told Dr Heiner he had been exposed to isocyanates in polyurethane paint.

46. His Honour observed that the passage in the report of 9 November 1988 contradicted Dr Heiner’s sworn evidence that it was in November 1989 that the appellant first told him he had been exposed to isocyanates. His Honour referred to other evidence pointing to Dr Heiner’s being made aware much earlier than November 1989 of the exposure to isocyanates. He referred to the appellant’s evidence, and to the reports of 1 September 1994 and 6 January 1997. His Honour expressed his conclusion on this subject in this way:

It appears to me that Dr Heiner, despite his apparent certainty that he first asked plaintiff in November 1987 about isocyanates, (see his letter of 1 September 1994) has accepted the plaintiff’s ‘adamant’ statements that he, Dr Heiner did not in 1987 ask about the chemical isocyanates.  The fact that Dr Heiner has been prepared to retreat from his earlier belief, based on his knowledge of asthmatics and the effect of isocyanates on asthmatics as to his asking the plaintiff, has caused me to have serious doubts about the accuracy of Dr Heiner’s evidence that plaintiff first told him on 20 November 1989 of exposure to isocyanates.  This aspect has also caused me to doubt Dr Heiner’s objectivity. 

47. The report of 6 January 1997, so it seems to me, does not record that the appellant was adamant that Dr Heiner had not asked at any time in 1987 about isocyanates but rather that the appellant was adamant that Dr Heiner had not done so in February 1987. But in any event the essence of his Honour’s critique is unaffected: that Dr Heiner was prepared to substitute the appellant’s recollection for his own which was based on his practice in taking histories from patients.

48. The question of the dates of the events to which I have referred arose because there was a possible difficulty arising from the Limitation of Actions Act confronting the appellant in pursing his claim.  The writ was issued on 22 May 1990 and the respondent did at one time plead that the appellant’s action was statute‑barred, although in the final form of its defence, dated 23 April 1998, that plea had been abandoned.  Dr Heiner said when cross-examined that the only discussion with the appellant he had about limitations ‘was that there was some statute of limitation as to when his exposure occurred’, and Dr Heiner’s recollection was that if the appellant knew about exposure to isocyanates before October 1987, ‘then he had a problem’. 

49. In my view it was open to his Honour to reach the conclusions he did after considering the somewhat confused evidence of the dates on which Dr Heiner had asked the appellant about isocyanates and the date on which the appellant had told Dr Heiner about them. It appears from his Honour’s reasons that his doubt about Dr Heiner’s objectivity was reinforced by his assessment of Dr Heiner’s response to questions in cross-examination about the document prepared by the appellant to which I have referred.

50. There was a conflict between the evidence of Drs Edwards and Young on the one hand and Dr Heiner on the other as to the value of readings of FEV1 in testing for asthma. Dr Heiner favoured a reading of maximum expiratory flow rate, MMEFR, as the ‘most significant’ measure, while conceding the other readings were ‘still important’. Dr Young explained in some detail the reasons for his disagreement with Dr Heiner on that subject and his Honour found the explanation logical. The explanation was in essence that readings of MMEFR can detect asymptomatic peripheral airway narrowing brought about by lesions in the small airways caused by smoking, but that since asthma does not just affect the small airways but spreads throughout the bronchial system in a patchy fashion, FEV1 readings, which measure the state of the whole system, are more useful in revealing the effects of asthma.

51. It is clear that, although his Honour expressed reservations about Dr Heiner’s objectivity, the primary reason for his rejection of the appellant’s claim was the cogency of Dr Young’s analysis based on the graph prepared by Dr Edwards. The appellant of course bore the onus of proof of the cause of his aggravated condition, and the objective evidence of the spirometer readings resulted in his failing to discharge that onus.

52. It was argued before his Honour that Dr Heiner’s evidence as that of the appellant’s treating doctor should be preferred to that of Dr Young who had not been consulted by, or examined, the appellant; and before us it was argued that his Honour had erred in rejecting that course. I see no error, however, in his having done so. The circumstance relied on by the appellant was no doubt a factor of some weight to be considered by his Honour, but so too were Dr Young’s eminence as an expert and the fact that Dr Young’s opinion rested on the spirometer readings, and not on the subjective assessment of symptoms. If one accepts the importance of the spirometer readings – as Drs Edwards and Young did – it must also be accepted that Dr Heiner was in no better position than Dr Young in assessing their significance.

53. I shall now summarize my conclusions on grounds 9, 10, and 12. I am not persuaded that it has been demonstrated that his Honour erred in accepting Dr Young’s opinion concerning causation.  Dr Young is an eminent expert on the subject of asthma and his opinion was based on his assessment of the objective evidence of the spirometer readings.  It was clearly open to his Honour to accept Dr Young’s evidence on the significance of FEV1 readings generally, and those recorded for the appellant in the relevant period.  His Honour was well aware that Dr Young had not seen the appellant but it has not been shown that he made any error in accepting Dr Young’s evidence in preference to Dr Heiner’s.  In the end the issue of causation turned on an assessment of the significance of the spirometer readings on the graph prepared by Dr Edwards.   Dr Heiner was in no better position than Dr Young to do that.  Furthermore, it was open to his Honour to conclude that Dr Heiner revealed some, perhaps understandable, lack of objectivity.  Accordingly I conclude that the appellant must fail on each of the three grounds. 

54. It is not necessary for me to consider the other grounds because the appellant must fail in his appeal. That is because even if his Honour were shown to have made one or more of the other errors alleged in the notice of appeal, which relate to findings of fact distinct from those relevant to the three grounds I have considered, his Honour’s conclusion on the main issue of causation would not be affected.

55. I should therefore dismiss the appeal with costs.